CHAPTER SEVEN WORKERS' COMPENSATION

CHAPTER SEVEN: WORKERS’ COMPENSATION
TABLE OF CONTENTS
I. INTRODUCTION.......................................................................................................................................... 1
A. SCOPE OF THIS SECTION ........................................................................................................................................................1
B. GOVERNING LEGISLATION, REGULATIONS, AND REFERRALS ........................................................................................1
1. Legislation ................................................................................................................................................................................1
2. Print Resources..........................................................................................................................................................................2
3. Referrals....................................................................................................................................................................................2
4. Internet Resources......................................................................................................................................................................3
5. Organizations ...........................................................................................................................................................................4
6. Injured Workers Organizations.................................................................................................................................................4
II. WORKERS’ COMPENSATION................................................................................................................... 4
A. INTRODUCTION ........................................................................................................................................................................4
B. COMPENSATION SYNOPSIS .....................................................................................................................................................5
C. ASSESSMENTS OF EMPLOYERS ...............................................................................................................................................5
D. WHO IS COVERED ...................................................................................................................................................................5
1. Workers....................................................................................................................................................................................5
2. Workers in Federally Regulated Industries ................................................................................................................................6
3. Federal Government Employees .................................................................................................................................................6
4. Workers Who Suffer an Injury While Working Outside B.C. ..................................................................................................6
5. Employers .................................................................................................................................................................................6
E. THE BOARD’S COMPENSATION JURISDICTION ...................................................................................................................6
F. GOVERNANCE ...........................................................................................................................................................................7
G. HEALTH AND SAFETY REGULATIONS ..................................................................................................................................7
H. A WORKER MAY REFUSE UNSAFE WORK ...........................................................................................................................7
I. PROHIBITION AGAINST DISCRIMINATORY ACTION ............................................................................................................8
J. CONDITIONS THAT MAY BE COMPENSATED .......................................................................................................................8
1. Causation Requirements............................................................................................................................................................8
2. Personal Injury or Death...........................................................................................................................................................9
a) Occupational Diseases ......................................................................................................................................................................... 9
b) Psychological Damages...................................................................................................................................................................... 10
c) Hearing Loss........................................................................................................................................................................................ 11
d) Conditions Resulting from Work in Conjunction With Other Factors..................................................................................... 11
e) Injuries that Occur Outside of B.C.................................................................................................................................................. 11
K. BENEFITS.................................................................................................................................................................................11
1. Temporary and Permanent Compensation................................................................................................................................12
2. Short Term and Long Term Wage Rates.................................................................................................................................13
3. Temporary Wage Loss Benefits................................................................................................................................................14
4. Income Continuity Benefits ......................................................................................................................................................14
5. Vocational Rehabilitation .......................................................................................................................................................15
6. Permanent Disability Pensions ................................................................................................................................................16
a) Loss of Function Method .................................................................................................................................................................. 16
b) Projected Loss of Earnings Method................................................................................................................................................ 17
c) Benefits after Age 65 .......................................................................................................................................................................... 18
7. Medical Aid Benefits...............................................................................................................................................................18
8. Benefits in Fatal Cases............................................................................................................................................................18
9. Suspension of Benefits..............................................................................................................................................................19
10. Emergency Assistance.............................................................................................................................................................20
L. CLAIMS PROCEDURE ..............................................................................................................................................................20
1. Reporting the Injury ................................................................................................................................................................20
2. Election...................................................................................................................................................................................20
3. Making a Claim.....................................................................................................................................................................20
4. Procedure After Application....................................................................................................................................................21
5. The Case Management Process ................................................................................................................................................21
6. Claims Management Solutions ................................................................................................................................................21
7. Initial Decisions ......................................................................................................................................................................22
a) Case Manager....................................................................................................................................................................................... 22
b) Vocational Rehabilitation Consultant.............................................................................................................................................. 22
c) Disability Awards Officer .................................................................................................................................................................. 23
d) Disability Awards Committee........................................................................................................................................................... 23
e) LSLAP Representative’s Role at the Initial Decision Level ......................................................................................................... 23
8. Claim Acceptance....................................................................................................................................................................24
9. Appeals ..................................................................................................................................................................................24
a) Reopening a Case – Workers’ Compensation Board .................................................................................................................... 24
b) Internal Review - Workers’ Compensation Review Division...................................................................................................... 25
c) Appeal to Workers’ Compensation Appeal Tribunal (WCAT) ................................................................................................... 25
d) Limitation Periods and Timing of Decisions ................................................................................................................................. 26
e) Policy is Binding.................................................................................................................................................................................. 26
f) Access to Files...................................................................................................................................................................................... 26
g) Appeal Procedure – Workers’ Compensation Review Division ................................................................................................. 27
h) Appeal Procedure – Workers’ Compensation Appeal Tribunal ................................................................................................. 27
i) Direct Appeals to WCAT ................................................................................................................................................................... 28
10. Reconsideration of WCAT Decisions and Judicial Review ......................................................................................................28
a) Statutory Grounds: Reconsideration Based on New Evidence................................................................................................... 28
b) Common Law Grounds: Reconsideration Based Unauthorized Exercise of Authority ......................................................... 28
(1) Two-Stage Process of Reconsideration .................................................................................................................................... 29
c) Judicial Review..................................................................................................................................................................................... 30
11. The WCB Fair Practices Officer (Formerly “Chief Complaints Officer” and before that “Ombudsman”)................................30
III. APPENDIX INDEX ...................................................................................................................................31
APPENDIX A: CHECKLIST FOR WORKERS’ COMPENSATION INTERVIEWS...................................................32
APPENDIX B: CHECKLIST FOR REVIEW DIVISION APPEALS ................................................................................33
APPENDIX C: SAMPLE AUTHORIZATION BY WORKER OR DEPENDANT FORM .........................................34
CHAPTER SEVEN: WORKERS’ COMPENSATION
I. INTRODUCTION
A. Scope of This Section
This chapter covers basic legislation and procedures. If a student has a client with a more complicated
issue, the student should refer to the references and advisory officers listed in the resources section at
the end of the chapter. Readers should be careful to consult the latest version of the Board’s policy
manual, which can be found at the policy section of WCB’s web site at www.worksafebc.com.
B. Governing Legislation, Regulations, and Referrals
1. Legislation
Workers’ Compensation Act, R.S.B.C. l996, c. 492 [WCA].
Workers’ Compensation Amendment Act, S.B.C. 2002, c. 56 (introduced May 13, 2002, as
Bill 49 and Bill 63) [WCAA].
• Bill 49 substantially reduces benefits for injuries occurring on or after June 30, 2002.
Changes include a reduction of the basic benefit rate, partial deduction of CPP disability
benefits, greatly reduced benefits after age 65, and less flexible rules for assessing wage
rates and partial disabilities. Workers injured before June 30, 2002 and whose condition
has deteriorated will receive additional benefits under the old (and more generous) rules
rather than the new rules.
• Bill 63 changes the entire Worker’s Compensation appeal system. These changes are
discussed in more detail below under Section II.K: Claims Procedure. In addition, this
bill binds the policies of the Board of Directors on the Board and the appeal tribunals,
effectively allowing the policies to be a form of subordinate legislation. These changes
were implemented on March 3, 2003.
Bill 37, Skills Development and Labour Statutes Amendment Act, 4th Sess., 37th Parl.,
British Columbia, 2003.
• Introduced on October 8, 2003 as Bill 37. It substitutes a new set of rules for
compensating survivors and allows “lay advocates” to represent workers or employers in
appeal tribunals. There are no requirements as to the training, insurance, supervision or
certification of these advocates.
Administrative Tribunals Act, S.B.C. 2004, c. 45 (ATA)
• Makes significant changes to the powers of the Workers’ Compensation Appeal Tribunal.
These include elimination of any ability to deal with constitutional or Charter issues, an
arguably tougher standard for judicial reviews, and a 60 day time limit to file a judicial
review of a WCAT decision.
• Under s. 46.3(1) of the ATA, the Workers’ Compensation Appeal Tribunal has no
jurisdiction to apply the Human Rights Code, R.S.B.C. l996, c. 210.
WCB Rehabilitation and Claims Services Manual – Volumes I & II
Website: www.worksafebc.com/publications/policy_manuals/rehabilitation_services_and
_claims_manual/default.asp
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• Effective June 30, 2002, the WCA was amended by the Workers Compensation
Amendment Act. The amendments changed the law in relation to compensation benefits
for injured workers. Volume I of this Manual sets out the official WCB policy for claims
filed under the former provisions. Volume II of this Manual sets out the official policy for
claims filed under the current provisions. These policies are binding on the WCB itself and
on the appellate bodies, and thus have the force of legislation. The Manual is often the
best starting place for research on new or unfamiliar issues.
2. Print Resources
Heather MacDonald and Marguerite Mousseau. Workers’ Compensation in British
Columbia, (LexisNexis Canada, 2009)
• A comprehensive overview of the workers' compensation system in British Columbia,
written by two members of the WCAT, the senior appeal tribunal.
3. Referrals
Unions
• Unions provide more representation for injured workers than all other sources
combined. If a worker was engaged in employment under a collective agreement when
injured, his or her union or former union should be the first resource. Some unions will
even help former members with claims arising out of injuries suffered in non-union
employment.
Workers’ Advisors Offices
Website: www.labour.gov.bc.ca/wab
Lower Mainland Regional Offices:
500-8100 Granville Avenue Telephone: (604) 713-0360
Richmond, B.C. V6Y 3T6 Toll-free within B.C.: 1-800-663-4261
Fax: (604) 713-0311
204 - 32555 Simon Avenue Telephone: (604) 870-5488
Abbotsford, B.C. V2T 4Y2 Toll-free: 1-888-295-7781
Fax: (604) 870-5494
• This is the primary resource for workers having difficulties with the Board. The
advisors have direct access to the claim file and provide workers with detailed,
confidential advice about the claim. They have also prepared very readable written
information for claimants.
Employers’ Advisors Office
Telephone: (604) 713-0303 Toll-free within B.C. and Alberta: 1-800-925-2233
Fax: (604) 713-0345 Website: www.labour.gov.bc.ca/eao
Community Legal Assistance Society (CLAS)
300 – 1140 West Pender Street Telephone: (604) 685-3425
Vancouver, B.C. V6E 4G1 Fax: (604) 685-7611
Toll-free: 1-888-685-6222
• CLAS may be able to help if a client has lost their appeal to the Worker’s Compensation
Appeal Tribunal (WCAT) and wants the WCAT to reconsider their decision, or a court
to overturn the decision; and if the advocate who helped the client at WCAT cannot
assist anymore.
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WCB Main Inspection Office
6951 Westminster Highway Telephone: (604) 273-2266
Richmond, B.C. V7C 1C6 Toll-free (outside Vancouver): 1-800-661-2112
• Complaints about violations of health and safety regulations should be directed here.
WCB Fair Practices Office
Street Address: 6951 Westminster Highway Telephone: (604) 276-3053
Richmond, B.C. V7C 1C6 Fax (604) 276-3103
Mailing Address: P.O. Box 5350 Stn. Terminal
Vancouver, B.C. V6B 5L5
• This office can be contacted when all internal remedies have been unsuccessful or if the
worker has a complaint about matters that are not subject to appeal, such as rude
conduct by WCB staff, failure to answer letters, or unfair procedures.
• Most lawyers who do WCB applications or WCAT appeals require payment in advance.
For more information please see the lawyer referral section.
4. Internet Resources
WorkSafe B.C.
Website: www.worksafebc.com
• The Board’s own site contains a wealth of material, including the complete Claims
Manual, Appeal Division decisions (since January 1, 2000), the complete Reporter series
of decisions, and most of the reports and documents listed above. It also has decisions
of the old Appeal Division and the Review Division, and statistics and resources.
• A policy and legislation page is located at www.worksafebc.com/law_and_policy with
links to an online version of the Act, recent amendments, and various policy and
practice materials. This is the most practical way to research current policies and
practices, including the Board’s two-volume compensation policy manual, which has the
force of law.
Workers’ Advisor’s Office
Website: www.labour.gov.bc.ca/wab/
• This site, which is part of the Ministry of Labour, contains excellent plain language
summaries of the key aspects of the system written for the average claimant, and other
material as well. This service is free for anyone who is not represented by a union.
Workers’ Compensation Appeal Tribunal
Website: www.wcat.bc.ca
• This site provides information about WCAT and various aspects of Workers’
Compensation appeal matters. The “How to Appeal” section provides information on
how to appeal, enables access to various appeal forms and provides internet links to
WCAT publications as well as other resources that can assist in the appeal process. It
also contains WCAT decisions, as well as forms required for appeal.
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5. Organizations
Workers’ Compensation Advocacy Group
300 - 1140 West Pender Street Telephone: (604) 685-3425
Vancouver, B.C. V6E 4G1 Fax: (604) 685-7611
• An informal organization open to all advocates for injured workers, including union
representatives, private and legal aid lawyers, workers’ advisers, injured workers’ group
leaders, and others. The group meets monthly, and as a recognized stakeholder for
injured workers, is regularly consulted by WCB and government about WCB matters.
PovNet’s wcb-bc Email List
For more information, contact Jim Sayre at jsayre@clasbc.net, or Penny Goldsmith at
penny@povnet.org.
• PovNet sponsors an interactive, confidential email list for workers’ advocates. The list
enables members to post questions and information about WCB cases and matters, and
to respond to other members’ postings.
BC Federation of Labour
# 200-5118 Joyce Street Telephone: (604) 430-1420
Vancouver, B.C. V5R 4H1 Fax: (604) 430-5917
Website: www.bcfed.com
• The BC Federation of Labour represents more than half a million workers through
affiliated unions in more than 800 locals, working in every aspect of the BC economy.
6. Injured Workers Organizations
Canadian Injured Workers Society
Website: www.ciws.ca
• The Society was formed in 2005 by a group of injured Canadian employees and their
family members that was interested in improving the workers compensation system in
Canada. The Society is a non-profit corporation registered with Corporations Canada.
The website is no longer updated however the archived resources may be useful.
II. WORKERS’ COMPENSATION
A. Introduction
The Workers’ Compensation Act [WCA] is a provincial statutory social insurance plan under which
personal injury, illness, or death to a worker arising out of, and in the course of, his or her
employment leads to no-fault compensation rather than court-awarded damages. Where a worker who
is covered by the WCA suffers an injury or disease that arises out of the course of his or her
employment, that worker loses the right to take legal action against any employer or worker covered
by Workers’ Compensation – including his or her own employer (See Section II.L.2: Election, for
information on the right of an injured employee to take legal action). Coverage is generally
compulsory. The workers compensation system is financed by assessments on employers. In B.C., the
Workers Compensation Board is also responsible for health and safety regulations, investigations and
enforcement.
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B. Compensation Synopsis
Compensation is generally payable where:
a) the worker is covered under the Act;
b) the worker has suffered an injury or disease or has died as a result of his work activities; and
c) an application has been submitted to the Board in accordance with the required time limits and
procedures.
The entitlement officers determine whether or not a worker is compensable under the scheme, with
possible appeals proceeding to the Review Division and Workers’ Compensation Appeal Tribunal.
C. Assessments of Employers
The theory behind the workers’ compensation system is that the risk of loss through occupational
disease or injury resulting from the workplace should be borne by industry as a cost of doing business.
The WCA is administered by the Workers’ Compensation Board (WCB), which is an independent
administrative agency created by the provincial government. The program is funded by compulsory
assessments on employers, which make up the Accident Fund. These assessments must be paid by the
employer and cannot be deducted from the employee’s pay (s. 14). The Board gets preferential
treatment in its power to collect from an employer. An employee whose employer is subject to the
WCA is covered by the WCA regardless of whether or not the employer pays premiums.
Industries are divided into classes and sub-classes. The total assessments for each class is fixed
according to the principles of collective liability; the Board is to collect sufficient money to cover the
past and estimated future costs of all the claims from workers in each sub-class. Each employer then
pays its share, based on the size of its payroll and adjusted for the number of claims against the
employer under the Board’s “experience rating” scheme. One negative effect of the experience rating
system is that employers obviously have an economic interest in contesting their employees’ claims.
This makes the system more adversarial, which might be seen to contradict the principles of Workers’
Compensation.
Some self-employed contractors are considered employers under the Act and therefore are assessed as
such. These self-employed workers can purchase “personal optional protection” (POP) to cover their
own risk of injury, in addition to the assessments they are required to pay to cover their risk as
employers. This arrangement is common in the logging, transportation and construction industries.
D. Who Is Covered
1. Workers
The WCA was amended on January 1, 1994 to expand the range of workers covered. All
workers are now covered, unless specifically exempted. Even certain volunteers are
covered, as are students engaged in work study programs that are approved by the Board.
Before this amendment, most office workers and other white-collar employees were not
covered. Since the amendment, only a few exceptions have been recognized, such as
professional athletes who have accepted a high level of risk, casual baby sitters, and non-
residents. Requests for exemptions may come from workers, employers, or may be initiated
by the Board. Decisions regarding exemption status may be appealed.
One of the unintended consequences of this universal coverage is to further limit the injured
worker’s right to sue for damages, since it is most likely that the person responsible for the
injuries will also be an employer or worker covered by the system. An extreme example of
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this was found in a malpractice case, Kovach v. Singh (Kovach v. WCB), [2000] S.C.J. No. 3
(Kovach), where the Supreme Court of Canada found that the decision of the Board was not
unreasonable. In this case, and in a similar Saskatchewan appeal, the Workers’ Compensation
Boards held that doctors treating an injured worker could not be sued for malpractice under
the tort system because the injured worker was in the “course of employment” while
undergoing treatment. The Board of Directors has responded strongly to cases that stray
from this position. They will not allow any recourse to the tort system and have reaffirmed
this bar to lawsuits in the policy directives.
2. Workers in Federally Regulated Industries
While working in B.C., workers in federally regulated industries are directly subject to the
workers’ compensation system.
3. Federal Government Employees
Federal government employees are governed by the Government Employees Compensation
Act, R.S. 1985, c. G-5 which provides that injured federal government workers in a given
province are to have their claims addressed by the provincial administrative body in that
province, and are entitled to be compensated at a rate determined under the provincial
workers’ compensation scheme of the province in which they are employed (but paid out of
a federal fund).
4. Workers Who Suffer an Injury While Working Outside B.C.
Workers who suffer an injury while working outside B.C. may be covered if:
a) they work in a compensable industry;
b) B.C. is their residence and usual place of employment;
c) the extra-provincial work lasts less than six months;
d) the work is a continuation of their B.C. employment; and
e) they are working for a B.C. employer (WCA s. 8(1)).
5. Employers
Employers covered by the WCA must contribute to the Accident Fund based on
compulsory assessments. Some categories of self-employed people may voluntarily register
with the Board and pay premiums for their own work activities. The assessment rate is based
on a complex system of classification relating to type of business and previous accident rates.
Employers should be referred to the Employers’ Advisors Office (see Section I.B.3:
Referrals, at the beginning of the chapter, for contact information).
E. The Board’s Compensation Jurisdiction
Sections 96 and 113 of the WCA give the Board exclusive jurisdiction over workers’ compensation
matters. The courts have generally respected this strong privative clause. Section 96 specifically grants
the Board the exclusive jurisdiction to inquire into, hear, and determine:
a) whether an injury has arisen out of or in the course of an employment;
b) the existence and degree of disability by reason of an injury;
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c) the permanence of disability by reason of an injury;
d) the degree of reduction of earning capacity by reason of an injury;
e) the average earnings of a worker, for the purpose of levying assessments, and the average
earnings of a worker for purposes of payment of compensation;
f) the existence of the relationship of a member of the family of a worker as defined by the Act;
g) the existence of dependency;
h) whether an industry is within the scope of the Act, and the class to which an industry should be
assigned for the purposes of the Act;
i) whether a worker is in an industry within the scope of the Act and entitled to compensation
under it; and
j) whether a person is a worker, a subcontractor, a contractor or an employer within the meaning of
the Act.
Section 113 of the WCA gives the Board jurisdiction over compensation in relation to workplace
health and safety.
F. Governance
Since 2002, the WCB has been governed by a Board of Directors which is composed of seven
Directors, appointed by the government to oversee the Board and its policies. One Director is
selected from a list provided by the B.C. Federation of Labour. Another Director represents
employers, while the remaining Directors are chosen based on professional or “public interest”
backgrounds. Under Bill 63, a policy of the Board was given a binding effect (WCA, ss.99 and 250).
Thus, the Directors who create those policies are crucial to the fairness of the system.
G. Health and Safety Regulations
The Workers’ Compensation Board (WCB) is also responsible for enacting and enforcing health and
safety regulations under Part Three of the Act. The Industrial Health and Safety Regulations have
been replaced with the WCB’s Occupational Health and Safety Regulation, B.C. Reg. 296/97. These
regulations can be found online at www2.worksafebc.com/publications/OHSRegulation/home.asp.
Workers or employers interested in the regulations can be referred to the Board’s Health and Safety
Department. The date of enactment should always be checked to determine which version was in
effect at the time of injury.
H. A Worker May Refuse Unsafe Work
Under the existing Occupational Health and Safety Regulation, Part 3, a worker may refuse work if
the worker has reasonable grounds for believing the work is unsafe. Work is deemed unsafe if the
work activities, the conditions of the work, or the conditions that would result if the work were done
creates or would create a significant risk that the worker or another person may be killed, seriously
injured, or suffer serious illness. The right to refuse, however, does not apply if the refusal would
directly endanger the health or safety of another person.
The right to refuse continues until the employer has taken remedial action to the satisfaction of the
worker, or an officer has investigated the matter and advised the worker to return to work.
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A worker who has exercised his or her right to refuse unsafe work must immediately report the
refusal and the reasons for it to his or her supervisor or to the employer. The worker must remain
available at the workplace during normal working hours until the investigation is complete. The
employer may give the worker different duties to perform until the matter is resolved, and it may
assign another worker to the job in question if the risk is specific to the worker (such as a person with
a bad back being told to lift heavy boxes, or an untrained person being told to operate equipment).
I. Prohibition Against Discriminatory Action
Section 151 of the WCA states that an employer or union must not take or threaten any retaliatory
action against a worker for exercising any of his or her rights under Part Three of the Act. A non-
exhaustive list of such discriminatory actions is provided in s. 150. This list includes: suspension, lay-
off, or dismissal; demotion; reduction in wages or transfer of duties or of location; coercion or
intimidation; or the imposition of any discipline, reprimand, or penalty.
Complaints should be made in writing to the board within the time limits set out in s. 152. Section
152(2) places the burden of proving the alleged discriminatory action did not occur on the employer
or union as applicable. The Board has been given a wide range of remedies under s. 153. It is
important to note that this section is not for human rights complaints, but only for retaliation against
a worker for exercising the rights provided by the WCB system.
J. Conditions That May Be Compensated
1. Causation Requirements
The key question that must be determined before a claim can be accepted is whether the
injury, death, or disease occurred as a result of employment. Sections 5, 6, and 8 of the Act
address causation in general terms. The determination of whether an injury arose out of and
in the course of employment can be made with reference to factors such as:
• whether the injury occurred on the premises of the employer;
• whether it occurred in the process of doing something for the benefit of the employer;
• whether it occurred in the course of action taken in response to instructions from the
employer;
• whether it occurred in the course of using equipment or materials supplied by the
employer;
• whether the risk to which the worker was exposed was the same as the risk to which he
or she is exposed in the normal course of production;
• whether the injury occurred during a time period for which the worker was being paid;
• whether the injury was caused by some activity of the employer or of a fellow worker;
• whether the injury occurred while the worker was performing activities that were part of
the regular job duties; and
• whether the injury occurred while the worker was being supervised by the employer.
This list is not exhaustive, and alone, none of the above factors are conclusive.
Additional information can be found in WCB’s Rehabilitation Services and Claims Manual.
Chapters 3 and 4 are very detailed. Students handling appeals should note that most
causation disputes come down to matters of evidence and not law.
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2. Personal Injury or Death
Compensation may be paid for personal injury or death that arises out of, and in the course
of, employment. Section 5(4) of the WCA states that where the injury is caused by an
accident that is shown to have arisen out of employment, it is presumed to have occurred in
the course of employment as required for compensation. An accident can also include
someone else’s intentional act.
The injury need not occur while the worker is engaged in specific productive acts, so long as
it occurs within the broad circumstances of carrying out the employment duties. Travelling
may be considered an activity in the course of employment if travel is part of the worker’s
duties or if the accident occurs on the employer’s property or on a “captive road” provided
and controlled by the employer, for example logging roads used by wood workers.
The Kovach decision upheld the Board’s policy that a worker who is undergoing treatment for
a work injury remains in the course of employment, even if the treatment is taking place long
after the job itself has ended (see above Section II.D: Who is Covered). A result of this
decision is that workers undergoing treatment for an injury or disease probably cannot sue
for medical malpractice.
If serious and wilful misconduct on the part of the employee is the sole cause of the injury,
no compensation is paid unless death or severe disability results.
If the worker suffered from a pre-existing disability of a similar nature, permanent
compensation is usually based on the difference between the new permanent disability and
the pre-existing disability (s. 5(5)).
a) Occupational Diseases
Occupational diseases are compensable as if they were work-related injuries.
Section 6(1) of the WCA states that:
i) if a worker suffers from an occupational disease and is thereby disabled from
earning full wages at the work at which he or she was employed, or the death
of a worker is caused by an industrial disease; and
ii) the disease is due to the nature of any employment in which the worker was
employed, whether under one or more employments;
then, compensation is payable as if the disease were a personal injury arising out of
and in the course of that employment.
A healthcare benefit may be paid even if the worker is not disabled from earning
full wages at the work at which he or she was employed. The date of disablement
will be treated as the occurrence of the injury. This may result in the worker
receiving nothing but healthcare benefits for diseases with a long latency period
such as asbestosis and most cancers. These healthcare benefits can include, for
example, medical benefits, necessary adjustments to the residential home, and
homecare. If a worker’s disease causes death, the worker’s spouse may be entitled
to survivor benefits, even if the worker was not eligible for compensation.
Consult Schedule B of the WCA for a list of occupational diseases the Board
recognizes as arising from specific types of employment or industries. For example,
where a worker was, at or before the date of disablement, employed as a coal
miner, silicosis is compensable, unless it is proven to have been caused by non-
work factors.
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If the worker, at or immediately before the date of the disablement, was employed
in a process or industry mentioned in the second column of Schedule B, and the
disease contracted is the disease in the first column of the schedule set opposite to
the description of the process, the disease will be deemed to have been due to the
nature of that employment unless the contrary is proven. The omission of a
disease from Schedule B does not mean that no compensation is payable. However,
a presumption of causation only arises for diseases mentioned in Schedule B. Other
diseases may be recognized by regulation, or in a particular case. For example, a
waitress or bartender working in a smoking environment may file a claim for
second-hand smoke causing lung disease. Evidence that the disease is caused by the
employment is required. If a fire fighter suffers a heart attack, the presumption is
contained in s. 6.1 of the Act itself.
NOTE: WorkSafeBC is currently developing the Exposure Registry Program,
which is designed to be a forum for workers, employers or others to
report work-related exposures. This registry is intended to track incidents
of exposure to substances which are known to be harmful (such as
asbestos), as well as exposures which may in the future be shown to cause
disease (such as power line emissions). The information obtained through
the registry will create a permanent record of a worker’s exposure and will
assist WorkSafeBC in establishing that the manifestation of a disease was
due to the nature of the employment in which the worker was employed
(a requirement under s. 6(1)(b) of the WCA).This will simplify the
adjudication of future claims for occupational disease caused by the
workplace exposure. This registry is expected to be operational by late
2011.
b) Psychological Damages
Receiving compensation for psychological damages or conditions has always been
difficult. Section 5.1 of the WCA however, now expressly states that a worker
cannot claim for mental stress unless it is the psychological consequences that
arise directly from a physical injury, or is an acute reaction to a sudden and
unexpected traumatic event arising from the worker’s employment, and is
diagnosed as such by a doctor. Mental stress arising from a decision by the worker’s
employer related to the employment (e.g. a change in job description or working
conditions) is specifically excluded from compensation, as is stress arising from
harassment by the employer, co-workers or customers, or from highly stressful
duties or working conditions.
The B.C. Court of Appeal recently found that some aspects of Policy #13.30
(Rehabilitation Services and Claims Manual, Volume II), which sets out the way the
WCB applies s. 5.1, violate the Charter by discriminating against workers who
suffer psychological disabilities caused by their work. The Court struck out
elements of the policy that purported to qualify the nature of the event that could
be considered “traumatic”. The Court did not, however, strike down s. 5.1 itself, or
the main aspects of policy # 13.30. See Plesner v. British Columbia Hydro and Power
Authority, 2009 BCCA 188.
Section 10 of the WCA prohibits employees from suing employers covered by
WCB. There is no comparable exception to the above-discussed s. 5.1 exception.
While the Board maintains that employees not covered under s. 5.1 can sue their
employers or other workers for mental “stress” conditions that are not
compensable, the courts have not confirmed this.
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c) Hearing Loss
Significant hearing loss caused by exposure to industrial noise in the course of
employment is compensable. The worker must submit tests showing the loss of
hearing and complete a special application form listing all employment and non-
employment noise exposure. See s. 7 and Schedule D of the WCA.
d) Conditions Resulting from Work in Conjunction With Other
Factors
Where the personal injury or disease is superimposed on an already existing
disability, the worker will be compensated only for the proportion of the disability
that may reasonably be attributed to the work-related personal injury or disease.
The measure of the disability attributable to the personal injury or disease is –
unless it shown otherwise – simply the magnitude of the difference between the
severity of the worker’s disability before the claim date and the severity afterwards.
Where the work combines with non-work factors to cause a new disability, the
worker may be compensated if the work was a significant cause of the disability. It
need not be the primary cause; the proportion of the disability attributable to the
work-related injury can be less than 50 percent. Work outside of B.C. is regarded as
non-work exposure for compensation purposes. However, workers compensation
boards across Canada have entered into an “interjurisdictional agreement” that
provides for reciprocal coverage of some disabilities arising from work exposure or
activities in different jurisdictions, and also enables the ruling Board to administer a
claim in another province. The Board may try to apportion benefits in cases where
the disability is partially caused by non-work or out-of-jurisdiction factors
according to the percentages of causation – at least when assessing a pension –
although it is not clear that the Act authorizes this.
e) Injuries that Occur Outside of B.C.
If an injury occurs while the worker is working outside of the province, and the
injury would normally entitle the worker or the worker’s dependents to
compensation, WCB will pay compensation if:
a) the employer’s place of business is located in the province;
b) the worker’s residence and usual place of employment is in the province;
c) the employment requires the worker to work both in and out of the province;
or
d) the worker’s out-of-province employment immediately followed the worker’s
employment by the same employer in the province, and the out-of-province
employment has lasted less than six months.
K. Benefits
NOTE: In a sense, B.C. now has two Workers’ Compensation Systems that work in tandem. One
system pertains to injuries which occurred before June 30, 2002 and the other to injuries
which have occurred on or after June 30, 2002. In cases where there are significant
differences in the law pertaining injuries that occur before and after June 30, 2002, this
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distinction will be clarified with bold text. These are colloquially known as “old world” and
“new world” claims respectively.
A key element of all benefit calculation is the worker’s “average earnings”, i.e. the amount of income
the worker received over an appropriate period of time before the injury. For injuries that occurred
BEFORE June 30, 2002 the benefits were 75 percent of a worker’s gross average earnings, and the
Act gave the Board considerable flexibility in determining this figure depending on daily, weekly,
monthly, or annual remuneration, or even on the probable yearly earning capacity of the worker at the
time of the injury. Earnings over the previous year were the most common measure, but the Board
may also use other periods as needed to better reflect the worker’s actual earnings and earning
capacity. These rules still apply in most cases to injuries which occurred before June 30, 2002.
For injuries AFTER June 30, 2002 the rate has been reduced to 90 percent of the worker’s net (take
home) pay. The new system also greatly restricts the method of calculating average earnings for
workers who were injured after June 30, 2002, by requiring the Board to use the exact previous one-
year earnings of the worker except for narrowly defined exceptions. Actual employment income is
averaged over the whole preceding year. This makes it much more difficult for some workers to
receive a fair benefit rate where they had irregular earnings prior to their injury.
One of the very few situations in which some workers may benefit from the new rules introduced in
Bill 49 are those in which the worker received employment insurance (EI) benefits for part of the
preceding year. Under s. 33(3.2) of the Amendment Act, EI benefits will be included in the calculation
of the worker’s earnings for the year if the worker was, in the Board’s opinion, employed in “an
occupation or industry that results in recurring seasonal or recurring temporary interruptions of
work”.
With the introduction of Bill 49, WCB benefits will now be adjusted annually according to inflation,
rather than the previous method of twice per year. Benefits will now be adjusted at a rate 1 percent
less than the actual inflation rate. There is also a 4 percent cap on inflation adjustments, regardless of
whether the actual inflation rate is higher. In addition, this change applies to all workers, including
those injured before June 30, 2002.
It is also important to note that now, under s. 35.1(8), a recurrence of an injury is treated as a new
injury. Thus if a worker was injured before June 30, 2002, and then had a recurrence at some point
after this date, the recurrence would be treated as a new injury and the benefits would be awarded at
the newer, less generous rate.
However, one must distinguish a “recurrence” from a “deterioration”. In Cowburn v. Worker’s
Compensation Board of British Columbia, 2006 BCSC 722, the court found that the Board of Director’s
policy which treated a deterioration in a worker’s disability as a recurrence to which the new rules
would apply was based on a patently unreasonable interpretation of the Act. Accordingly, when a
worker’s permanent disability that began before June 30, 2002 becomes worse, the increased benefits
will be based on the older, more generous provisions that were in force when the disability first arose.
1. Temporary and Permanent Compensation
Compensation may be paid for lost earnings and lost earning capacity.
For injuries that have occurred BEFORE June 30, 2002: Temporary wage loss and
permanent pension benefits are calculated at 75 percent of the “wage rate” recognized by the
Board, up to the maximum earnings insurable for the year of the injury. In 2001, the
maximum insurable earnings were $58,000 per year, so a worker injured in 2001 could
receive $3,625 per month (75 percent of $58,000 divided by 12). Workers earning more than
the maximum earnings rate are not compensated for the balance of their losses, and cannot
sue for the difference.
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For injuries that occur AFTER June 30, 2002: Bill 49 amends the benefits formula. For
workers injured on or after June 30, 2002, benefits are based on 90 percent of the worker’s
net (take home) pay. This results in, at minimum, a 10 percent decrease in benefits for most
workers.
2. Short Term and Long Term Wage Rates
For injuries that occur BEFORE June 30, 2002: During the “initial payment period”,
the first eight weeks of compensation, the wage loss rate is determined by looking at what
the employee was actually earning at the time of the injury. The guiding principle for
determining wage rates is stated in s. 33(1) of the WCA as the “actual loss of earnings
suffered by reason of the injury”. At the beginning of a claim, the wage-loss benefits are
calculated as a short-term earnings rate – usually 75 percent of the worker’s gross earnings at
the time of the injury.
The Board reviews the wage rate after eight weeks of benefits, and recalculates a long-term
earnings rate. This is generally based on the worker’s earnings for the one-year period
before the date of injury (although other periods may be used). If the worker changed jobs,
or had a period of unemployment during the previous year, the average monthly or weekly
earnings during this time could be reduced so that it fails to represent the worker’s “actual
loss of earnings”. In such cases, a different averaging period or an altogether different
method of determining wage rates should be employed. E.g., the benefits may continue at
the wage rate at the date of injury, or be based on the worker’s earning capacity at the date of
injury, or be based on the average earnings of all such workers in that occupation.
For injuries that occur AFTER June 30, 2002: During the “initial payment period”, the
first 10 weeks of compensation, the wage loss rate is determined by looking at what the
employee was actually earning at the time of the injury. The Board does not consider the
worker’s actual income tax, EI or CPP deductions in determining benefits in the first 10
weeks of the claim. Instead, benefits for all workers are based on 1.5 times the basic personal
deduction allowed under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) for a single
taxpayer, plus the standard EI and CPP contributions. For single workers, this results in
benefits during that period of only 90 percent of the worker’s take home pay. Workers who
have several dependants and hence much lower actual tax deductions, who would otherwise
be entitled to a higher level of benefits, are instead assessed the same way as single workers.
The Act allows the Board to determine average earnings differently if a worker’s pattern of
employment at the time of injury was “casual in nature”. Where this is found to be the case,
the worker’s earnings over the immediately preceding 12 months of employment are
considered a more accurate reflection of the lost wages. (Consequently, the average earnings
calculated at the outset of the claim will be the same as those calculated as long-term
earnings later in the process.) Practice Directive #C9-9 describes a two-step investigation
procedure to determine whether a workers pattern of employment is casual in nature. This
can be found at www.worksafebc.com under the “Regulation and Policy” section. Where the
job at the time of injury is scheduled to last for three months or longer, the worker will not
be considered a casual worker. Where the job is scheduled to last for less than three months
then the employee may be considered a casual worker if he or she has a history of short term
jobs (less than three months in length) with significant absences from employment between
them (greater than the time spent employed). The result is that a “casual worker”, who may
have been earning a good wage at the time of the accident, is likely to be eligible for less
compensation during the initial payment period than his or her counterpart in a
“permanent” job.
The Board reviews the wage rate after 10 weeks of benefits, and recalculates a long-term
earnings rate. The process of calculating long term wage rates is far more rigid than it was
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under the previous system. Section 33.1 of the Act sets the immediate preceding one year
earnings as the default time span with which to calculate the long-term wage rate, with few
exceptions. The wage rate is the basis for all temporary, permanent and rehabilitation
benefits that are paid under the claim, thus the Board has far less authority to establish a fair
rate that really reflects the worker’s lost earnings.
For example, a worker who earned $3000 per month take home pay at the date of the injury
may have been laid off for six months of the previous year due to local economic conditions.
If the worker is in what the WCB considers a “highly seasonal” occupation, any EI benefits
the worker received while laid off would add to the earnings; otherwise, only the wages the
worker received during the six months of actual employment would count. But the Board is
required to divide this income over 12 months, so the worker’s average earnings would be
reduced to $1500 per month and the benefits would be based on 90 percent of that amount,
or $1350 if the worker is totally disabled.
The Act does allow the Board to determine average earnings differently, in “exceptional”
circumstances if the one year average would be “inequitable” (s.33.4). This provision does
not apply in the case of “casual” workers (in which case the 12 month average is rigidly
applied) or “permanent” workers who have been employed for less than 12 months (in
which case 33.3 is used). See Practice Directive #C9-12; an exceptional case has been
interpreted to mean one that is “truly extraordinary”, “unusual”, or “irregular”, such that
“the worker’s circumstances in the year prior to the injury fail to provide any meaningful
measure of their employment history”. Examples might include a non-compensable illness
or injury, or maternity/paternity obligations. To arrive at the long-term average earnings
figure that better reflects the worker’s loss of earnings, officers may: i) exclude a significant
atypical disruption (i.e. one lasting more than six weeks) from the calculation of the worker’s
long-term average earnings; and/or ii) base the worker’s long-term average earnings on a
longer period of time (e.g. 24 months) or on a shorter period of time.
In the case of a worker who has been working, on a “permanent” basis, less than 12 months
for the pre-accident employer, section 33.3 of the WCA allows earnings to be calculated
based on what a person of similar status employed in the same type and classification of
employment would earn in 12 months. Section 33.3 is not applicable where the employment
is determined to be temporary.
3. Temporary Wage Loss Benefits
Temporary wage loss benefits are paid for time lost beyond the day of the injury, for a
period as long as the worker suffers temporary (total or partial) disability. As discussed
above, an assessment of the wage rate will take place after 10 weeks, and consequently the
benefits payable may change at that time to better reflect lost long-term earnings. These
benefits cease once a worker’s condition stabilizes or “plateaus”. Partial temporary wage loss
benefits are relatively rare and only paid where there is actual evidence of suitable
employment immediately available to the worker notwithstanding the injury. Usually, the
Board recognizes the worker’s right to full wage loss benefits until he or she can return to
some type of employment, or until the condition appears to have stabilized.
4. Income Continuity Benefits
Although classified as rehabilitation benefits (described below), these are payments to
provide interim support for the worker while the amount of a permanent disability pension
is determined. A worker’s advocate should always request these benefits as they are often the
only source of income a worker will have between the time the worker’s condition stabilizes
and the time the pension benefits are assessed. These are short-term, temporary benefits. If a
worker refuses employment, he or she may be refused income-continuity benefits. See Policy
C11-89.10 in the Rehabilitation Services and Claims Manual for more information regarding
the assessment of income continuity benefits.
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5. Vocational Rehabilitation
Vocational Rehabilitation benefits have been drastically cut since 2002, because of changes
to the Board’s policies and practice, although the key provision of the Act, s. 16, has not
been changed. The annual expenditures on vocational rehabilitation are now a small fraction
of what they were in 2001.
Rehabilitation benefits are discretionary benefits, which can include:
• monthly compensation (in the same amount as wage loss benefits) to support a worker
during a rehabilitation program;
• payment of tuition, books, and other costs of the course itself;
• a job search allowance (also in the same amount as wage loss benefits) to support the
worker while looking for suitable employment if he or she cannot return to the pre-
injury job; and
• a training on the job allowance or wage subsidy to encourage an employer to allow the
worker to learn new employment skills, or gain experience in a new field.
Whenever a worker is unable to return safely to his or her old occupation, an advocate
should request a referral to a WCB rehabilitation consultant.
Rehabilitation decisions can be reviewed by the WCB’s Review Division but its decisions
cannot be appealed to the Workers’ Compensation Appeal Tribunal. A worker may receive
retraining if he or she is unable to return to the previous job, if the previous job is a risk to
the worker’s health, or if the previous job would put the worker at a long-term disadvantage.
If a worker is cooperating with re-training, he or she should be continued on benefits at the
full wage loss rate. If the benefits are cut but the worker thinks he or she is cooperating, an
appeal should be filed. Rehabilitation will usually be provided only as necessary to restore the
worker to the same earning capacity as the long-term wage rates determined by the Board.
This is another good reason to review the wage rate decision.
In fatal cases, a surviving spouse may be eligible for retraining.
Policies C11-85.00 to 91.00 in the Rehabilitation Services and Claims Manual set out the five
phases of vocational rehabilitation:
• Phase One: A WCB Vocational Rehabilitation Consultant will make an effort to assist
the worker to return to the same job with the same employer (the “accident employer”).
• Phase Two: If the worker cannot return to the same job, the Board consultant works
with the accident employer to make worksite accommodations and job modification, or
to provide alternative in-service placement, with a view to finding the worker a new
position within the accident employer’s business.
• Phase Three: If the employer is unable or unwilling to accommodate the worker, the
consultant identifies suitable occupational options in the same or related industry.
• Phase Four: If the worker is unable to return to employment in the same or related
industry, the consultant explores opportunities in all industries, with emphasis placed on
the worker’s transferable skills, aptitudes and interests.
• Phase Five: If the existing skills are insufficient, the consultant uses training programs
to help the worker acquire new skills. In addition, the consultant assists the worker to
secure employment once training is complete.
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6. Permanent Disability Pensions
Once a worker’s condition has stabilized or “plateaued,” wage loss benefits will cease. If the
worker is still disabled, he or she will be assessed for a permanent disability pension instead.
WCB will disregard the fact that an injured worker has been unable to find a suitable new
job if it considers the unemployment to be due primarily to an economic downturn, rather
than work-related factors.
The Board will also require most workers to mitigate their loss of earnings by moving to a
larger city to find suitable employment, if there are no suitable jobs in the community. If the
worker refuses, he or she will be deemed to earn the amount the Board claims would be
available in the city.
NOTE: Workers who also qualify for Canadian Pension Plan (CPP) disability benefits will
have one-half of those benefits deducted from their WCB pensions (this could
amount to as much as $577 per month, half of the $1153 maximum currently
payable by CPP). This deduction represents the employer’s share of the benefits
paid for the same disability as the WCB claim. If a CPP pension is partly based on
non-compensable disabilities, no deduction will be made for that proportion of the
CPP.
For permanent total disability, this amount is determined depending on when the worker
incurred his or her injury. For injuries that occurred before June 30, 2002, the worker is
paid 75 percent of his or her long-term gross wage rate for life. As of 1999, this was to be
not less than $1,269.23 per month, and not more than $3,615.08 per month. For injuries that
occur after June 30, 2002, permanent total disability awards will be based on 90 percent of
average net earnings, and benefits will end at age 65.
For permanent partial disability, the Board would previously calculate the worker’s loss of
earnings and earning capacity in two ways: “loss of function method” and the “projected
loss earnings method”. The worker would automatically receive the higher of the two results.
However, if the worker’s permanent disability occurred on or after June 30, 2002, there are
very strict limits placed on the “loss of earnings” method for injuries. This also applies to
workers injured before June 30, 2002 in some cases; if the Board believes that it was not
apparent before that date that the worker would be permanently disabled, then their
disability will not be considered to have become permanent until after that date.
a) Loss of Function Method
The first calculation, for permanent partial disability pensions, (called the “loss of
function method”) compares the worker’s degree of physical impairment to that of
a totally disabled person.
Generally, only disabilities that could reduce earning capacity receive compensation,
and there are no payments for pain and suffering or loss of enjoyment of life. The
Board’s policy manual contains detailed schedules of percentage disability for
different types of disabilities. Types not listed are estimated, and there is usually
some degree of discretion in the process.
In the past, the Board relied heavily on its own doctors, who usually performed a
detailed “permanent partial disability exam” and recommended a percentage of
total disability representing the worker’s impairment. The disability awards officers
usually followed the doctor’s recommendations closely.
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Under the “ARCON project”, which has been approved for general use, Board
doctors will rarely be involved. Instead, a physical therapist will measure the
worker’s range of motion using computer-controlled equipment. This will result in
an immediate report describing the worker’s physical impairment, which the
disability awards officer will use to determine the degree of physical impairment.
Such decisions are difficult to appeal, and workers’ advocates have raised serious
concerns about the methodology and the choice of ARCON (a company which
otherwise has only supplied a few U.S. insurance industry customers) to supply the
equipment. WCB officials claim that ARCON results are only an alternative means
of measuring aspects of disability such as range of motion, and are not a substitute
for its own decision-making process on other aspects (e.g., subjective pain).
One difficult issue for many workers is the Board's policy that limits benefits for
"chronic pain" to 2.5%, with no consideration of a loss of earnings pension. This
has been challenged as discriminatory in a human rights complaint that is now
awaiting a Supreme Court of Canada decision on a preliminary objection by the
Workers Compensation Board.
b) Projected Loss of Earnings Method
This second calculation, for permanent partial disability pensions, (called the “loss
of earnings method”) compares the long term wage rate that a worker was able to
earn per year before the injury to that of what the worker is able to earn after the
injury.
Previously, the Board was required to pay a pension based on the worker’s actual
loss of earnings whenever this was “more equitable”. For example, if a back injury
regarded as a 5 percent physical disability prevents an older worker from returning
to a cleaning job at which she was earning $2000 per month after deduction, and
she could not be retrained for lighter work due to her age and other factors, a full
loss of earning pension of about $2000 per month would have been awarded to
reflect the fact that the injury made her totally unemployable.
The new system requires that loss of earnings pensions will only be paid if the
worker fulfils the “so exceptional test”: where it appears that the combined effect
of a worker’s pre-injury occupation and disability resulting from the injury is
considered “so exceptional” that an amount determined under the loss of function
method would not appropriately compensate the worker. (See WCA s. 23(3.1) and
Item #38.00 in the Rehabilitation Services and Claims Manual).
In addition, the policy now requires that in order to be eligible for a loss of
earnings assessment, it must be “medically impossible” for the worker to return to
his or her job,and that the worker cannot adapt to a new occupation without
suffering what the Board regards as a significant loss of earnings (Item #40.00 in
the Rehabilitation Services and Claims Manual).
This may mean that a worker whose functional disability is relatively moderate –
such as a back injury that precludes heavy lifting – but who cannot return to the
previous employment due to age, education, language, and other “non-
compensable” factors, may not be eligible for a loss of earnings pension. Indeed,
the effect of the new provisions of the Act and policies has been that very few
workers qualify for loss of earnings pensions. Many workers who cannot return to
their old occupations or be retrained will be left with only the basic functional
pension. Therefore, as in the example of the worker above, that worker would only
receive 5 percent of 90 percent of her net earnings, which would work out to be
about $90 per month.
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However, beginning in 2008, the WCB began looking more closely at the physical
requirements of the job, widening the definition of essential skills required for the
job to include the physical ability to perform the skill – which may be something as
basic as carrying heavy loads or swinging a hammer. (See Item #40.00 in the
Rehabilitation Services and Claims Manual).
Those few pensions that are still based on the worker’s loss of earnings will usually
be “deemed” on the basis of what the WCB thinks the worker can earn after the
injury, not what the worker is actually earning. For example, a worker who cannot
return to a pre-injury job that paid $4000 per month may find new employment for
$2000 per month. Instead of accepting the worker’s own experience, the Board
may decide that over the long term the worker can find a different kind of job –
perhaps in a larger city—that pays $3000 per month, and calculate the benefits
accordingly. Instead of getting a loss of earnings pensions representing the actual
$2000 per month the worker is losing, he would receive only $900 per month – 90
percent of the $1000 the Board “deems” him to be losing.
c) Benefits after Age 65
Pension benefits now end at age 65 in almost all cases. Pensions will only continue
if the worker presents “clear and objective evidence” that he or she would have
worked past age 65 but for the injury. The Board is required to set aside an amount
equal to five percent of the worker’s pension benefits, which the worker can
supplement up to five percent more from his or her monthly benefits. These
amounts, plus interest, will be paid as a lump sum retirement benefit to the worker
at age 65 (or later, in the presence of the aforementioned “clear and objective
evidence”). In many cases, the amount of the lump sum will be no more than a few
months of benefits. After that, the worker will get no additional compensation for
the work injury, no matter how long he or she lives. Should the worker die before
receiving the lump sum retirement benefit, it will be paid to the worker’s
dependents or estate.
7. Medical Aid Benefits
The Board must pay for necessary medical treatment, including physicians and hospital bills,
physiotherapy, drugs, artificial limbs, hearing aids, and special transportation. Allowances for
personal care and for structural alterations to the home may also be paid to paraplegics and
other severely disabled workers.
The Board has the right to supervise a worker’s treatment (s. 21) and to authorize any
surgery. If a worker decides to undergo surgery or other treatment that is not authorized by
the Board, the costs may not be paid, and if the injury is worsened by the treatment, benefits
may be cut off or reduced. The Board usually agrees to pay for surgery recommended by the
worker’s own doctor, but the doctor should ask for the Board Advisor’s approval. The
Board often refuses to pay for drugs or physiotherapy its advisors consider unnecessary.
Notwithstanding the 75-day rule, the Board now agrees that each Medical Aid decision can
be appealed.
8. Benefits in Fatal Cases
NOTE: Fatality benefits have changed under Bill 37. The bill retroactively affects all deaths
occurring on or after June 30, 2003. Among the fatality amendments, the more
significant changes include (see s. 17 of WCA for full details):
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• The modification of the definition “child” so that a child eligible for
compensation now includes a child under 19 years of age and a child under 25
years of age who attends a school; and
• Changes to survivor benefits – for example, benefits may no longer be lost
upon re-marriage, and survivors’ pensions are not terminated when the worker
would have reached age 65.
Where death results from a compensable injury or industrial disease, the surviving
dependants may receive lump-sum payments or monthly pensions based on the deceased
worker’s earnings. These pensions cannot exceed the statutory maximum, and are adjusted in
accordance with changes in the Consumer Price Index. The amount of the pension for
spouses without dependent children depends on the surviving spouse’s age (s. 17). Survivors
can receive benefits even though the worker was not employed at the time the disability
began, and therefore was not eligible for any benefits himself.
A separated spouse may receive benefits based on the amount of support the deceased
worker would likely have contributed had he or she survived (s. 17(9)). A common law
spouse is entitled to benefits after three years of cohabitation or after one year if there are
children. However, compensation may not be paid, or may be reduced, if there is a separated
spouse as well.
Dependant benefits may be suspended when children reach 19, or 25 if they are still
attending school. In older cases, a spouse of a deceased worker who remarried might have
lost his or her benefits. Under the new legislation, there are no such exclusions. Instead, s.
19(2) states that a person whose payments were discontinued under a former section is
entitled to complete payment of all benefits that he or she would have been entitled to – as
though the section had not applied.
9. Suspension of Benefits
Benefits may be suspended:
a) if a worker persists in unsanitary or injurious practices, which tend to prevent or slow
recovery;
b) if a worker refuses to submit to medical or surgical treatment, which, in the opinion of
the WCB, is reasonably essential in promoting recovery;
c) if a worker fails to attend a medical examination arranged by the Board; or
d) if a worker is in prison, in which case benefits will cease, or be paid to his or her
dependants.
NOTE: The policy relating to incarceration and the provision of the Act on which
it is based (s. 98(3)) have been challenged as possible Charter violations.
In 1993, a panel of the Appeal Division ruled that the policy was not
authorized by the Act, because it automatically cancelled all benefits upon
imprisonment (unless there was a qualifying dependant), without regard to
the nature of the benefits or the ability of the worker to engage in
employment while in custody. The Governors and Panel of
Administrators have considered this policy – the result being that only
wage loss benefits will be cancelled.
The Board may also divert compensation from a worker for the benefit of his or her
dependants if the worker is not supporting them.
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Under s. 57.1 of the Amendment Act, 2002, the Board may withhold or reduce benefits for
any period the worker does not provide requested information (unless the Board finds that it
was unclear in communicating the requirement, or erroneously concluded that the worker
was being uncooperative). However, such benefits will be paid when the worker provides the
necessary information.
10. Emergency Assistance
Many workers need immediate income if they are waiting to be accepted or their benefits
have been disallowed or terminated. They should consider alternate sources: social
assistance, which may provide a crisis grant for immediate temporary relief or longer term
relief if a decision is being appealed; EI sickness benefits; CPP disability pensions; any plans
available through their place of work or union; ICBC (if an automobile was involved); or
private disability insurance.
L. Claims Procedure
1. Reporting the Injury
All injuries that cause a loss of work, or which could lead to a future claim, should be
reported as soon as possible by the employee or, if death results, by the employee’s
dependants, to the superintendent of the place of employment, first aid attendant, or other
official. Claims have been denied (at least until an appeal took place) because a worker
waited even a few days, hoping the pain would go away. In all but the most minor cases,
workers should also seek medical attention promptly.
2. Election
In certain cases, an employee may choose to sue the person or company responsible for
causing a work injury rather than making a claim for Workers’ Compensation. If the injury is
caused by a person not covered by the WCA (i.e. a delivery driver injured by a private citizen
in a motor vehicle accident), then the worker can elect to sue a non-covered “third party”
instead of claiming compensation. The Board can also sue the third party in the worker’s
name; this is termed “subrogation”. If the worker claims compensation, the Board has
exclusive jurisdiction to decide if it will take legal action against a third party. If it does take
action and recovers more than the total value of the worker’s benefits, the worker receives
the difference minus a 29 percent administration fee. If the Board recovers less than the total
value of benefits, the worker will keep the full compensation. A worker cannot waive or
assign his or her right to compensation. An “election” is an important and complex decision
(see s. 10 of the WCA) and workers should be referred to the Workers’ Advisors Office at
(604) 713-0360 or toll-free at 1-800-663-4261, before deciding whether to claim
compensation. If a worker chooses to pursue a court action, and is unsuccessful or the
award is less than he or she would have received under the compensation regime, the worker
may still be able to receive compensation. However, the original claim for compensation
must have been made within the time limits outlined below.
3. Making a Claim
The employer must complete a report to the Board within three days of receiving the
employee’s report, or immediately if death results. If there is time lost, or medical expenses,
the worker must also make an Application for Workers’ Compensation benefits. The
attending physician also completes a Physician’s First Report within three days of first seeing
the worker, and fills out progress reports after each visit. An employee has one year to make
a claim for compensation under s. 55 of the WCA. This may be extended to three years in
certain circumstances. In extreme cases, the Board may consider even longer extensions.
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Workers can now call the WCB directly to report an injury and file a claim. Teleclaim is
available to workers across the province, Monday to Friday, from 8 a.m. to 4 p.m. at 1 888
WORKERS (1 888 967-5377), or #5377 for TELUS, Rogers, and Bell mobility customers.
Teleclaim is designed to simplify the process, reduce the amount of paperwork and provide a
personalized service based on each individual’s needs. Before calling the Board to report an
injury, the worker should write down the key information about the job, how the injury
occurred, and what the doctor has said about the condition. The worker’s statement during a
Teleclaim report will form part of the claim file, and could be used as evidence in a future
appeal proceedings. The Teleclaim transcript may be sent to the worker. If it is not sent, the
worker should request a transcript.
4. Procedure After Application
The family doctor plays a crucial role in the worker’s claim as well as his or her treatment.
The WCA requires that the doctor file an initial report with the Board, as well as progress
reports for each visit. Doctors are also required to give all necessary advice and assistance to
a worker making application for compensation, including furnishing proof that may be
required. Some doctors are very helpful to injured workers, while others refuse to get
involved in what they consider a legal issue. Such an attitude can be very harmful if there is a
medical dispute between the Board and the worker.
The Board has extensive inquiry and investigative powers. It may require the worker to be
medically examined by a WCB staff doctor or by independent consultants. WCB officers
called Claims Adjudicators, Disability Awards Officers, and Rehabilitation Consultants
decide whether to accept the claim and what benefits, if any, should be paid. Although rarely
used, the Board has the authority to conduct a formal inquiry at which the claimant and
other witnesses are compelled to appear and be questioned. Important decisions occur at
various times, as a result of the interaction and correspondence between various WCB
officers, the worker, the family doctor, and any specialist.
5. The Case Management Process
The WCB operates under a case management process in cases where the individuals are
recovering from complex and costly injuries and illnesses. The key features of case
management include a case manager who oversees the delivery of services for the entire life
of the claim. It is also supposed to include regular multidisciplinary team meetings, clinical
care planning, site visits, and a return to work plan, which sets out expectations surrounding
medical treatment, physical rehabilitation, and a return to work option. In theory, the
worker, union or other representative, the worker’s doctors, and the employer are all
expected to participate. Advocates for injured workers have found that this crucial part of
the case management model is rarely followed.
6. Claims Management Solutions
On May 11th 2009, WCB launched a new “Claims Management Solutions” (CMS) system to
streamline and manage the claims process more effectively, and improve service to
customers. CMS manages all data related to previous, current and future claims and helps
integrate services throughout the life cycle of a claim. It is supposed to result in faster case
handling and claim payments, more support for injured workers, and less administrative
work for employers and service providers. Workers can obtain real-time access to their claim
file by registering online, and can authorize a representative to have access as well.
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7. Initial Decisions
Most decisions are made by front line WCB officers. The major issues to be decided are:
whether the worker is covered by the WCA; whether the injury arose out of and in the
course of employment; and what benefits the worker is entitled to. The most important
WCB officers, and the decisions that they make, are as follows:
a) Case Manager
• Accepts or rejects claim;
• approves wage loss benefits, determines the initial wage rate, and terminates or
reduces wage loss benefits;
• investigates and decides “long term” average earnings, which are implemented
eight weeks after the injury (10 weeks for injuries occurring on or after June
30, 2002);
• approves or rejects operations or other major treatments;
• approves workers’ expenses for WCB payment;
• determines when to terminate wage loss benefits because the worker’s
disability is considered to have “plateaued”; and
• generally makes most decisions involving workers including whether to register
the worker for vocational rehabilitation services and pension assessments.
b) Vocational Rehabilitation Consultant
• Works with the worker, employer, and union (if any) to get the worker back to
work as soon as medically possible, perhaps to a modified job;
• approves job retraining courses;
• determines training allowances (usually paid at wage loss levels) and expenses
in attending courses;
• can agree to subsidize a new employer for limited time;
• determines “continuity of income” benefits to bridge the gap between
termination of wage-loss benefits and determination of a permanent pension;
and
• assesses a worker’s long-term employability, and the earnings he or she is
considered capable of achieving after the worker has “maximized” his or her
earning capacity in a suitable and available job. This assessment is the core of
the Disability Awards Officer’s decision concerning a loss of earnings pension.
While the decision is made by the Officer, who can reject the recommendation
of the consultant, the consultant’s assessment is a crucial step in the pension
process.
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c) Disability Awards Officer
• Determines the degree of permanent disability on a physical impairment basis;
for workers whose permanent disability is considered to have occurred on or
after June 30, 2002, this will determine the pension in the great majority of
cases; and
• determines whether the worker has suffered a loss of earnings that is “so
exceptional” that the functional pension does not adequately compensate for
it. The WCB’s practice directive suggests that a difference in pension of 25%
or more constitutes an exceptional difference.
These WCB employees, together with a number of other WCB “players,” interact
considerably during initial decision processes. For example, a projected loss of
earnings assessment, while made by a Disability Officer, is based on a report from
the Rehabilitation Officer stating which jobs are suitable and available to the
worker, and what earnings could be anticipated. Throughout a claim, the Board’s
salaried medical staff (doctors, psychologists, etc.) are consulted regularly regarding
medical issues, and their advice is regularly accepted by the Board over that of the
worker’s own family doctor and specialist if there is a dispute.
d) Disability Awards Committee
• Approves all “so exceptional” decisions; and
• approves all loss of earnings pension awards
e) LSLAP Representative’s Role at the Initial Decision Level
LSLAP students may only assist workers with a few formal procedures at the initial
decision level. However, the student’s role at this point is still important. If the
initial claim is done well, appeals may be avoided. These types of inquiries are
usually done by correspondence, but may be in person at the worker’s request.
One important aspect of the CMS data management system is the “portals” which
allow workers, employers and representatives to access claim files directly. The
worker needs to call the Board and obtain an ID and PIN in order to do this. Such
access allows an advocate or advisor to see exactly how the claim has been handled.
Students should get a copy of the file and review the relevant documents with the
worker. They may also request that the Board provide an opportunity to make
submissions prior to the final decision. Some officers will comply these requests.
It is important to help a client prepare the best possible case at this level. For
example, a projected loss of earnings assessment always includes an extensive
interview between the Vocational Rehabilitation Consultant and the worker
regarding the types of employment that are suitable and available to the worker.
The worker should be prepared for this interview, and should be ready to explain
issues such as: what he or she is capable of doing, what job activities he or she
cannot perform, and why this is the case. The Board rarely decides that a worker is
100 percent disabled, and workers should therefore be discouraged from expecting
such a ruling, unless there is very strong medical evidence of unemployability.
In addition to filing an appeal, a student can contact the officer who made the
decision to request that it be reconsidered on the basis of significant new evidence,
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or to seek further explanation of the officer’s reasons. Note that this must take
place within 75 days of the original decision.
Initial decision-making at the Board level is extremely important, and very informal
in its procedure. In general, if a representative doesn’t understand how or by whom
a decision will be made, or what factors will be considered, it is always possible to
call the Board and ask. The Claims Manual, Workers’ Advisors Office, and other
sources of information mentioned in Section I: Introduction of this chapter can
also help prepare a successful claim. See Appendix A for a checklist for a student
conducting a client interview.
8. Claim Acceptance
If the claim is disallowed, the worker will receive a decision letter outlining the reasons for
rejection. If the worker has not received such a letter, the student should contact the Board
and request an explanation.
Some common reasons why a claim is rejected are:
a) the employee waited too long to report to the employer or to apply;
b) the injury did not occur in the course of employment, or was not caused by the
employment;
c) the injury was due to pre-existing degenerative conditions (such as back injuries); or
d) the employee did not meet special requirements for “mental stress” injuries under s. 5.1.
Ambiguous medical evidence often leads the Board to decide that the work-causation was
not established. Even if the worker’s doctor is supportive, the Board will frequently refer the
claim to one of its medical advisers, who may disagree with the treating physician’s opinion.
9. Appeals
Most appeals are first made to the Review Division of the WCB; second, for some issues,
appeals are made to the independant Workers’ Compensation Appeal Tribunal (WCAT).
NOTE: With the adoption of Bill 63, the system of independent appeals and
reconsideration powers that enabled the Board to correct almost any decision has
been drastically changed. The following is a brief summary of the changes: i) the
Review Board, Appeal Division, and Medical Review Panel (MRP) have been
eliminated and are replaced with an Internal WCB Review followed by an appeal to
the new Workers Compensation Appeal Tribunal (WCAT); ii) decisions about
vocational rehabilitation and many pension decisions (where the issue concerns a
range of five percent or less in the partial disability assessment) can only be
appealed to the internal review process.
a) Reopening a Case – Workers’ Compensation Board
Reconsiderations Are Now Very Limited. Under Bill 63, effective on March 3,
2003, s. 96(2) provides that a decision may be reopened at any time, on application
or on the Board’s own initiative, where there has been a recurrence of an injury or a
significant change in the worker’s compensable medical condition. Applicants
seeking to revisit a decision to deny benefits cannot rely on s.96(2), but rather, must
appeal to the Review Division.
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Section 96(4) does allow the Board to “reconsider” any past decision, on its own
initiative, but 96(5) prohibits it from doing so if a decision is more than 75 days
old unless there has been fraud or misrepresentation (such as when a videotape
may show that the worker is less disabled than claimed). The Board interprets this
to mean that the reconsideration must be completed, not just initiated, by the 75th
day, and staff have been advised that they cannot correct even an error of law after
that time, or change a decision to give effect to persuasive new medical evidence
not available when the original decision was made. In such cases, an appeal to
WCAT is the prescribed recourse.
b) Internal Review - Workers’ Compensation Review Division
A worker, a deceased worker's dependant, or an employer may request a review of
any of the following decisions of the Board: i) a decision respecting a compensation
or rehabilitation matter (e.g. denial of benefits, or quantum of benefits); ii) a
decision levying payment by the employer for failure to comply with the statute; or
iii) a decision respecting an occupational health or safety matter.
The Review Division may also reconsider its own decisions in some cases. It can
only undertake such a reconsideration during the first 23 days after the decision is
made, and only if no appeal has yet been filed to the WCAT (Workers’
Compensation Appeal Tribunal). The Internal Review Division’s powers are
slightly greater than the Board’s – it can change a decision on the basis of new
evidence that didn’t exist or couldn’t have been presented previously with “due
diligence” on the part of the applicant. Even that authority, however, ends on the
24th day. This means that for decisions that cannot be appealed to the WCAT, like
vocational rehabilitation issues and many pension amounts, there will be no way for
anyone in the system to change an incorrect decision based on new evidence, even
if it could not possibly have been presented earlier and shows conclusively that the
decision was wrong.
c) Appeal to Workers’ Compensation Appeal Tribunal (WCAT)
A worker, a deceased worker's dependant, or an employer may appeal most
decisions of the Review Division to WCAT.
The following classes or decisions may not be appealed to WCAT (ss. 239 and
Workers Compensation Act Appeal Regulation, B.C. 321/2002):
i) Decisions respecting vocational rehabilitation (s.16);
ii) amount of a functional pension if the possible range is 5% or less, and
commuting a pension into a lump sum payment (ss. 23 and 35)
iii) decisions applying procedural time limits specified by the Board under s.
96(8) of the Act;
iv) decisions refusing to allow an extension of time to file a request for
review (s. 96.2 (4));
v) decisions relating to the conduct and procedural policies implemented by
the Review Division for the internal review (ss. 96.4(2) to (5) and 96.4(7));
vi) orders by the chief review officer as to whether or not to suspend the
operation of a decision pending completion of the review (s. 96.2(5));
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vii) decisions about whether or not to refer a decision back to the Board
following completion of the Review Division hearing (s. 96.4(8)(b)); or
viii) decisions respecting the conduct of a review in respect of any matter that
cannot be appealed to the Appeal Tribunal under s. 239(2)(b) - (e) of the
Act.
d) Limitation Periods and Timing of Decisions
The time limit for applying for an Internal Review is 90 days. Generally,
workers or employers must appeal to the Board’s Internal Review officers within
90 days of the WCB decision. This time limit can be extended by the Chief Review
Officer if good reason for the delay is shown. Workers who have missed the 90 day
limit when they find out they have grounds for appeal should always ask for an
extension – they should not give up on their claim.
Most Internal Review Decisions must be made within 5 months (150 days).
The Act now requires that the internal review officers complete their review of the
Board’s decision within 150 days of the date when the request for review was
made.
The time limit for appealing to WCAT is 30 days. If a worker or employer is
unhappy with the outcome of the internal review, they must appeal to WCAT
within 30 days.
Most Appeal Tribunal Decisions must be made within 6 months (180 days)
of receiving the Claim File from the Board. This general time limit can be
extended by the chief review officer due to the complexity of the matter, a request
by the worker or employer, or the need to await a pending decision on another
claim raising similar legal or policy issues.
Direct Appeals from WCB to WCAT. There are certain types of appeals which
go directly to the new Appeal Tribunal without the decision first being reviewed
internally. These include appeals over a decision regarding alleged discrimination by
an employer against a worker for making a claim, or reporting a safety violation.
The 90 day limit also applies to appeals from a decision by the Board to reopen (or
to refuse to reopen) a previous decision.
e) Policy is Binding
Section 99 of the WCA states that all decisions “shall be given according to the
merits and justice of the case and where there is a doubt as to any issue and the
disputed possibilities are evenly balanced, the issue shall be resolved in accordance
with that possibility which is favourable to the worker”. However, the Internal
Review Division and Appeal Tribunal are legally bound to follow WCB policies,
even if they conflict with the merits and justice of the case (WCA, ss.99 and 250). If
the Appeal Tribunal’s panel feels that a policy is illegal, it must be referred to
WCB’s Board of Directors for ultimate determination. In effect, these provisions
have elevated “policy” to a new form of subordinate legislation.
f) Access to Files
Under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996,
c.165, all workers have the right to receive a copy of their file. Employers have the
right to obtain a copy of the Board’s file if an appeal is pending, or a decision is
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made. The Act, however, limits an employer’s ability to use this information in
non-employment related issues. An employer, for example, may not use the
information contained in the employee’s file for disciplinary purposes.
An employee’s WCB claim file that is disclosed for purposes of an appeal or a
Freedom of Information request should contain all of the information pertaining to
the Board’s decision, as well as copies of any decisions regarding the claim.
Prior to May 2009, a file was divided into various sections such as: Claims, Medical,
Accounts, and Memo. Usually the papers were filed in chronological order. Files
are organized differently under the CMS data management system. Now, the
preferred method of disclosure is by way of an encrypted pdf. file on a CD. The
first disclosure will be a complete copy of the file, not just an update.
Overall the adoption of electronic (E-file) rather than paper files has reduced
administrative delays due to files being in use by other departments at the WCB or
appeal tribunals, but it has also decreased the detailed information explaining how
decisions were reached, as handwritten notes and other documents are sometimes
omitted. A request for disclosure under the Freedom of Information and
Protection of Privacy Act usually results in a more thorough search for such
records, and is advisable in cases where all information is needed. At times, the
Board may not disclose all of the relevant evidence in its possession. One reason is
that certain departments at the Board, such as the Vocational Rehabilitation
Department, keep unofficial sub-files or documents in draft form, which may not
be fully incorporated into the worker’s electronic “claim file”. Some of the missing
information may be helpful for appeals, such as the actual observations of the
Board’s staff during a functional evaluation, rather than just a final report.
g) Appeal Procedure – Workers’ Compensation Review Division
A complete account of the review process goes beyond the scope of this chapter. A
good starting point in preparing a review of the Board’s decision is to go to
www.worksafebc.com and look for the “Review and Appeal” section, under the
“Claims” menu. There is a Policy and Procedures Manual that describes the
process in detail, as well as provides the necessary forms and applications.
Limitations as to what kinds of decisions can be appealed, and what persons can
appeal them, are clearly stated within this section.
To request a review, the worker must complete and submit a two page Request for
Review form (available online). This form may be submitted by mail or by fax. See
Appendix B: Checklist for Review Division Appeals.
h) Appeal Procedure – Workers’ Compensation Appeal Tribunal
Similarly, the best starting point to prepare an appeal to the WCAT is to go to the
website: www.wcat.bc.ca. The “How to Appeal” section provides information
regarding the appeal process, enables access to various appeal forms and provides
internet links to WCAT publications as well as other resources that can assist in the
appeal process. The WCAT site also contains a detailed manual. Parties applying
for reconsideration must write to Tribunal Counsel Office. WCAT will not accept
applications for reconsideration by telephone.
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i) Direct Appeals to WCAT
Certain appeals go directly to the Appeal Tribunal without being reviewed
internally. These include decisions regarding alleged discrimination by an employer
against a worker for making a claim or reporting a safety violation.
10. Reconsideration of WCAT Decisions and Judicial Review
WCAT decisions are “final and conclusive”, but are subject to reconsideration based on
statutory and common law grounds. If you are successful, the original decision will generally
be found void, in whole or in part, and a WCAT panel will hear the appeal once again.
a) Statutory Grounds: Reconsideration Based on New Evidence
Section 256 (3) of the WCA allows for a party to a completed appeal to apply for
reconsideration of a decision based on evidence which:
• is substantial and material to the decision, and
• did not exist at the time of the appeal hearing or did exist at that time but was
not discovered and could not through the exercise of reasonable diligence have
been discovered.
If you apply for reconsideration based on new evidence, you must explain:
• why the new evidence is substantial (has weight and supports a different
conclusion);
• how it is material (is relevant to the decision);
• whether or not the evidence previously existed; and
• if it did exist previously, why you did not discover (and submit) it at the time
of the original hearing.
You will not be able to re-apply based on any new evidence that might become
available in the future.
b) Common Law Grounds: Reconsideration Based Unauthorized
Exercise of Authority
Administrative bodies such as the WCAT have only such authority as is granted to
them by statute. Where they purport to exercise authority in a manner that is
inconsistent with their grant of authority, the resultant decisions may be reviewable.
The tribunal may be found to have exceeded its authority where there have been:
• breaches of the rules of “natural justice” (i.e. procedural defects);
• errors of law with respect to jurisdiction; and
• unreasonable errors of fact, law or exercise of discretion that do not involve
jurisdiction.
NOTE: In a recent Supreme Court of Canada decision (Dunsmuir v. New Brunswick,
2008 SCC 9) the Court concluded that the distinction between
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“reasonableness” and “patent unreasonableness” was untenable and so,
henceforth, at common law there will be only two standards of review –
reasonableness and correctness. It is not clear whether this should affect
reconsiderations by the WCAT. Its standard is whether the error is so
serious that a court would set the decision aside in a judicial review (see
below), and s. 58 of the ATA still uses “patently unreasonable” to
describe the standard of review applied by the court to a WCAT decision.
To the extent that the distinction between patent unreasonableness and
unreasonableness matters, anyone seeking a reconsideration should argue
the error meets the higher standard. Any error meeting the higher
standard will also meet the lower.
In deciding whether there is an error of law going to jurisdiction regarding
findings of fact, law, or the exercise of discretion, the test is whether the
finding was “patently unreasonable”. Decisions will not be set aside
simply because they contain an error of fact, law, or the exercise of
discretion, or because they are incomplete in some respect. The error
must be one that is “patently unreasonable” or not capable of being
rationally supported.
(1) Two-Stage Process of Reconsideration
The first stage results in a formal written decision, issued by a WCAT
panel, determining whether there are grounds for reconsideration. If the
panel concludes that there are no grounds for reconsideration, WCAT will
take no further action on the matter. If a panel decides that there are
grounds for reconsideration, the original decision will then be found void
(in whole or in part) and the application will proceed to the second stage
at which a WCAT panel will hear the appeal once again. The WCAT will
decide whether the second stage will be conducted by oral hearing or
written submission.
WCAT has the authority to reconsider both WCAT and Appeal Division
decisions. WCAT does not, however, have the authority to reconsider
decisions by the former Review Board or the current Review Division.
Objections to those decisions will be treated as appeals, or applications
for extensions of time to appeal.
It is important not to apply for reconsideration until you are ready to
proceed as a party may apply for reconsideration of the original WCAT
decision on each ground on one occasion only. WCAT will consider a
second reconsideration on common law grounds only when a party is
alleging new breach of natural justice related to the previous
reconsideration.
In view of the finality of these provisions, especially where a decision has
not been appealed, any worker who is not completely satisfied with a
decision should request a review by the Review Division and if allowed,
an appeal to the WCAT. This will preserve a residual right to present new
evidence in the future, even if the appeal is unsuccessful.
WCAT’s Manual of Rules of Practice and Procedure is accessible online at
www.wcat.bc.ca. WCAT decisions are accessible at the same web site
under “research”. If you want to view previous WCAT decisions made on
applications for reconsideration, you can select “reconsideration
grounds,” under “type of decision”.
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c) Judicial Review
Most advocates feel that it will not prejudice a worker to apply for reconsideration
first, and then undertake a judicial review only if the reconsideration application is
rejected. In such cases the reconsideration panel would have committed a
jurisdictional error by upholding the initial decision, if it was in fact unreasonable.
This issue hasn’t been addressed yet by the courts, though, and some advocates
worry that the test may become even tougher if the WCAT has upheld the decision
on reconsideration.
In the past, judicial reviews did not play a large role in workers’ compensation.
However, Bill 63 eliminated the system of independent appeals and reconsideration
powers that enabled the Board to correct almost any decision that was shown to be
incorrect. The bill leaves workers with only an internal review by WCB review
officials, followed (in some but not all cases) by an appeal to WCAT. Decisions
concerning vocational rehabilitation, the amount of most pensions, and commuting
a pension into a lump sum payment will not be independently appealable at all—
the decision of the WCB’s internal Review Division will be final. As a result, courts
have become more willing to intervene, given the reduction in the number of
possible appeals by workers. The WCAT website has a convenient list of judicial
review decisions.
A party may apply for judicial review of a WCAT decision by the British Columbia
Supreme Court within 60 days of the date on which a decision is issued. Under
certain circumstances the court may extend the time for applying. Possible
judicial review cases should be referred to lawyers as it is very difficult to file
and conduct a judicial review without a lawyer’s assistance. See Chapter 20:
Public Complaints Procedures for more information about judicial review.
11. The WCB Fair Practices Officer (Formerly “Chief Complaints Officer”
and before that “Ombudsman”)
The WCB has a Fair Practices Officer, who has been assigned to deal with issues of alleged
unfairness related to the WCA. A claimant who has a complaint about a decision must first
pursue all available routes of appeal. The Fair Practices Officer may investigate a complaint
after all routes of appeal are exhausted. Individuals or groups with complaints about the
fairness of WCB decisions, recommendations, actions, procedures, practices, or regulations
may contact the WCB Complaints Officer by phone, fax, mail, or in person.
The WCB Fair Practices Officer should not be confused with the province’s Ombudsman,
who still has authority to investigate complaints against the WCB. The B.C. Ombudsman’s
policy is to suggest that all complaints go first to the WCB Chief Complaints Officer, but a
worker may ask that the provincial Ombudsman intervene immediately, or if the Fair
Practices Officer is unable to resolve the problem. Advocates are beginning to make more
complaints to the BC Ombudsman recently, and students can insist that this be done if the
complaint process seems ineffective. See Chapter 20: Public Complaints Procedures.
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III. APPENDIX INDEX
A. CHECKLIST FOR WORKERS’ COMPENSATION INTERVIEWS
B. CHECKLIST FOR REVIEW DIVISION APPEALS
C. SAMPLE AUTHORIZATION BY WORKER OR DEPENDANT FORM
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APPENDIX A: CHECKLIST FOR WORKERS’ COMPENSATION
INTERVIEWS
 Obtain basic client information
 Note WCB claim number
 Determine worker’s claim status:
a) Present benefits
b) On what basis
c) Pending changes
d) Relevant decisions
e) Pending appeals
 Review worker’s claim in full detail:
a) Date of injury
b) Nature of injury
c) Circumstances of injury
d) Client’s job
i) Remuneration
ii) Duties - job description
iii) Length of Employment
 If claim was accepted, determine:
a) Initial benefit rate
b) Did benefit rate change after 10 weeks?
i) Evidence of long-term earnings given to WCB
ii) Client's actual work and earnings history
 Any medical treatment and diagnosis
a) Client’s position
b) Doctor’s advice
c) Board’s position
 Permanent disability
a) Return to previous job
b) Return to another job with same employer
c) Retraining
 Long-term loss of earnings?
a) Other advisor or representatives
b) Workers’ advisor? Trade Union? Other?
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APPENDIX B: CHECKLIST FOR REVIEW DIVISION APPEALS
 Interview client
 Review his or her documents
 Immediately take note of time limits applicable – they are always to be adhered
 Contact the WCB for necessary clarification, reconsideration based on new evidence, etc.
 Advise client on alternatives such as an application for reconsideration based on new evidence, keeping in
mind that the decision is not more than 75 days old since that would prohibit a Board from reconsidering
it.
 File Request for Review application form if instructed by client. Ensure the time limit is met.
 Request copy of file from Board (this can be done before an appeal is filed if time permits).
 Review client’s file with him or her
a) Any correspondence
b) Medical file
c) Memoranda
 Identify key issues leading to the decision - examine all aspects
 Research important issues
a) Medical - consult family doctor, specialist, etc.
b) Policy - read Claims Manual, relevant Reporter decisions, etc.
 Decide on the basic grounds for appeal and relief sought
 Apply for permission to make a late appeal of a related decision, if necessary
 Prepare and gather the evidence
a) Client’s testimony
b) Other witnesses
c) Documents:
i Medical legal reports
ii Affidavits or letters from unavailable witnesses
iii Income tax returns, etc.
• Ask Review Division to subpoena non-cooperative witnesses
 Prepare submissions - do this in writing, as with a trial book
 Hearing
 Receive and review Review Division findings with client
 Consider further appeal to Workers Compensation Appeal Tribunal
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APPENDIX C: SAMPLE AUTHORIZATION BY WORKER OR
DEPENDANT FORM
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